The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far…

This isn't to say that nearly every case reviewed will be overturned. For some, it's too late. Of those reviewed, 28 pertain to prisoners with death sentences -- of which nearly all have already died... or been put to death. For others, their convictions may not have hinged on apparently questionable DNA evidence.

What's uncovered here is just the beginning. There are nearly 1,200 more cases to review. For many of those, it will likely be several years (and several lawsuits) before the truth comes out. Of those 1,200, nearly 700 are being met with stonewalling by local law enforcement and prosecutors, who have refused to provide requested transcripts and other court materials.

Part of this widespread failure is undoubtedly due to the FBI's desire to rack up convictions. (The same is true for those entities it worked with -- local law enforcement agencies and prosecutors.) But a larger portion of this can be chalked up to the FBI's own desire to keep its "slam dunk" forensics analysis from being questioned by anyone inside or outside of its labs. For four decades (1972-2012), the FBI refused to provide any guidelines for the use of, not just hair DNA evidence, but almost any forensic evidence, in court.

The FBI is waiting to complete all reviews to assess causes but has acknowledged that hair examiners until 2012 lacked written standards defining scientifically appropriate and erroneous ways to explain results in court. The bureau expects this year to complete similar standards for testimony and lab reports for 19 forensic disciplines.

Judging from how analysts performed in court, the lack of guidance was apparently construed to mean "put people in jail," rather than unbiased scientific analysis. This news follows on the heels of a highly critical report condemning the agency's faith in "bite mark analysis," a practice that is increasingly being perceived as junk science -- foisted on law enforcement by self-described "experts" with no hard data to back up their findings. The courts, so far, have often indulged bite mark experts, despite a National Academy of Sciences report finding that bite mark analysis provides "no evidence of an existing scientific basis for identifying an individual to the exclusion of all others."

These are people who have the power to effectively end someone's life and they've been instrumental in ensuring that problems tracing back to the early 1970s -- and first examined 25 years later -- remained buried until it could no longer be ignored.

from the our-doj-at-work dept

I've mentioned in the past how my eyes were opened as to how the Justice Department prosecutes various criminal cases after seeing a powerful documentary called Better This World, which detailed (in part) the prosecution against two teens for supposedly planning to plant some bombs at a political convention. While the two teens are hardly innocent, the ridiculous tactics pulled by the US Attorneys' office and the FBI in pressuring them into a plea bargain made it clear that for the DOJ, it's never about justice, but about winning. And that can be a bit dangerous when you're the guys with the most guns and you get to make up many of the rules as you go along.

The FBI began reviewing a few hundred cases, but notified only prosecutors of flaws, with the Department of Justice claiming they were not required to inform defendants or their lawyers. In more than half of the 250 cases in which errors were initially identified, prosecutors never contacted defendants to inform them of the potentially exonerating evidence. The DOJ since expanded its review to involve thousands of older cases from the 1980s and 1990s.

There's been plenty of talk lately about DNA evidence exonerating falsely convicted persons, and according to the Innocence Project, a large number of those false convictions were due to bogus hair analysis by the DOJ:

Of 310 individuals exonerated through DNA evidence, according to an Innocence Project database, 72 were convicted in part because of microscopic hair evidence.

Some died before they could be exonerated.

Basically, the key issue seems to be that hair is not a unique match -- that is, it's not like DNA or a fingerprint or something. It can suggest some information about the type of person, but that's about it. Yet, the DOJ regularly used it in cases to suggest that it was a "perfect match" implying that hair analysis was no different than, say, a fingerprint.

While the DOJ has now agreed to review thousands of cases, including informing defendants of the possible flaws, it will also "waive deadlines and procedural hurdles that typically make it difficult to challenge convictions." Finally, the FBI has agreed " to provide DNA testing to every defendant whose case involves evidence deemed flawed by the FBI." That's a pretty big deal, showing that at least someone in the DOJ and the FBI realized just how absolutely massive a screwup this has been for decades.

While the FBI is trying to downplay the significance of this, their actions suggest they realize how spectacularly they screwed up:

“There is no reason to believe the FBI Laboratory employed ‘flawed’ forensic techniques,” FBI Special Agent Ann Todd, a spokeswoman for the bureau, said in an email. “The purpose of the review is to determine if FBI Laboratory examiner testimony and reports properly reflect the bounds of the underlying science.”

Riiiiight. You don't agree to DNA tests for so many people if you're just confirming that the FBI didn't exaggerate here or there. This revelation is quite the black eye for the DOJ and shows, yet again, how a focus on "winning" over actual justice distorts the incentives.

from the freedom-of-the-press? dept

Here's an odd one. Apparently a French news site that focuses on file sharing/BitTorrent/P2P news has been ordered by a court to report on the convictions of file sharers in France. It's not entirely clear under what laws, but perhaps it's a "fairness doctrine" type of thing. Apparently, the big entertainment companies took the site to court over its failure to report on the convictions. The site is more well known for pushing back against things like three strikes laws or the typical propaganda from the industry -- so the industry pushed it to also publish news of the convictions. What's weird is that these "conviction reports" include lots of personal information on those who were convicted, including names, addresses, and birth dates. I'm somewhat surprised the site didn't try to put these convictions into a bit more "context" to show how silly or unreasonable they might be -- but perhaps the court order forbids that.

from the buttle-or-tuttle? dept

In a case where the legal implications should thrill any fans of Terry Gilliam's movie classic Brazil, the Supreme Court is set to examine if it's constitutional to convict someone, based on evidence that was only collected due to bad data in a government database. There's no question that a search of someone due to bad data in a database is unconstitutional, but the question is whether or not what's found in that search can then be used to charge someone. In this case, a bad (obsolete) database entry in a county database resulted in the search of an individual's car, where drugs and a firearm were found. This resulted in a conviction and jail time, but the search itself wasn't constitutional, because the data was incorrect. The appeals court let the conviction stand, oddly arguing that throwing out the conviction wouldn't put much pressure on governments to keep their data clean. The court also argues that anyone convicted as a result of such bad data, should simply file a separate, civil, lawsuit against the government. Of course, it seems like the bigger issue should simply be on the constitutionality of using any unconstitutionally obtained evidence in a lawsuit.